'Enemy Combatants' and 18 U.S.C. 4001(a)

So much has been written since Sept. 11 on the individuals who have been detained by the federal government that surely whole forests have been consumed by the effort.

And yet a provision of federal criminal law that at first blush seems to be directly applicable has been only recently brought to my attention.

18 U.S.C. 4001(a) reads: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

The question raised is, why does this not forbid the continued detentions of U.S. citizens Yaser Esam Hamdi and Jose Padilla, who have been locked up in military brigs and held incommunicado, with no charges being filed, and no access to legal counsel? It seems particularly apt because the statute specifically mentions emergency detention camps.

Some civil liberties groups are particularly upset about such treatment of Padilla. Hamdi, at least, was captured on the battlefield in Afghanistan, and thus might implicate the president's powers to prosecute a war. But Padilla was seized as he departed a plane in Chicago. Nevertheless, both have been declared "enemy combatants."

Criminal Division Spokesman Bryan Sierra declared that section 4001(a), "Constitutionally could not interfere with the president's power as commander-in-chief."

He cited section 4001(b)(1): "The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the attorney general ..."

Sierra added, "While the language in the statute is broad, the section clearly addresses the attorney general's authority concerning the federal civilian prison system, not the president's constitutional power as commander-in-chief to detain enemy combatants. It is our position that Congress drafted the law not to restrict the president's power, and according to the record, that point was even noted by then-Rep. Abner Mikva during the debate. We also feel that the president's authority to order the capture and detention of enemy combatants is supported by the Supreme Court's decision in ex parte Quirin. Also, no court has ever construed section 4001 to apply outside the context of civil detention."

In other words, even though the legislative history of the statute seems to make clear that Congress wanted to ensure that no citizens would ever be detained except in conformity with laws passed by Congress, Justice believes that the Supreme Court has upheld the president's right to declare even citizens to be enemy combatants.

Ironically, in passing section 4001, Congress also repealed the 1950 Emergency Detention Act, which "established procedures for the apprehension and detention, during internal security emergencies, of individuals deemed likely to engage in espionage or sabotage."

Then-Attorney General Richard Kleindienst testified in December 1969 that the continuation of that act was "extremely offensive to many Americans. In the judgment of this Department, the repeal of this legislation will allay the fears and suspicions — unfounded as they may be — of many of our citizens. This benefit outweighs any potential advantage which the Act may provide in a time of internal security emergency."

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